NORTH v. LOCKETT et al
Entry Granting Defendants' Motion for Summary Judgment and Directing Entry of Final Judgment - Mr. North has not identified a genuine issue of material fact as to his claims in this case and the defendants are entitled to judgment as a matter o f law. Therefore, the Defendants' Motion for Summary Judgment, dkt. 159 , is GRANTED. Judgment consistent with this Entry shall now issue (SEE ENTRY FOR ADDITIONAL INFORMATION). Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 8/18/2017. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CHARLES L. LOCKETT Warden,
WILLIAM E. WILSON Dr.,
TRACY HEISER, TAMMY MCDANIAL,
KARL NORRIS, BIXLER Ms. (FNU),
SCHARFF Ms. (FNU), RUPSKA Mr. (FNU),
PUTHOFF Lieutenant (FNU),
BRACE Lieutenant (FNU),
Entry Granting Defendants’ Motion for Summary Judgment
and Directing Entry of Final Judgment
For the reasons explained below, the plaintiff is not entitled to any relief in this action and
defendants’ motion for summary judgment, dkt. , is granted.
I. PROCEDURAL HISTORY
Plaintiff Jeffrey North (“Mr. North”) is a federal inmate who went on a hunger strike while
confined at the United States Penitentiary in Terre Haute, Indiana, (“USP-Terre Haute”) from July
2011 through February 2012. The circumstances that followed form the basis of the claims raised
in this civil rights action. The amended complaint, filed February 11, 2014, contains seven claims
for relief labeled by Mr. North as “counts.” Mr. North seeks compensatory and punitive damages.
As to each of these claims, the defendants sought summary judgment or, in the alternative,
dismissal. See dkts. 108, 109 and 110. The plaintiff was permitted seven months to file a response
to the defendants’ motion, but failed to do so. See dkt. 158.
For the reasons explained in the Entry of September 21, 2016, this Court denied without
prejudice the defendants’ motion for summary judgment and granted the alternative partial motion
to dismiss. See dkt. 123. The alternative partial motion to dismiss was granted to the extent that
Counts One, Three, Four, and Five were dismissed as time-barred pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Dismissal was appropriate based on the statute of limitations
because “the relevant dates [that establish the defense] are set forth unambiguously in the
complaint.” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009). In addition, this Court noted that
“[n]othing in this ruling prohibits recruited counsel from raising a motion to reconsider based on
facts not previously available to the Court.” Dkt. 123 at 5, fn. 1.
Instead of ruling on the defendants’ unopposed motion for summary judgment, however,
this Court granted Mr. North’s motion to suspend all pretrial activity to the extent that counsel was
recruited to assist him with the claims remaining in this action given his stated physical and mental
disabilities. See dkt. 123. The remaining claims alleged violations of Mr. North’s Eight
Amendment rights and include the following three counts:
Count Two: Mr. North alleges that Nurses Bixler, Norris, Scharff, McDaniel, and Heiser
inflicted unnecessary pain and further damage to his nasal passage in connection with the insertion
of nasogastric tubes at unspecified times in violation of his Eighth and First Amendment rights.
Mr. North also alleges that Dr. Wilson and Warden Lockett were responsible as supervisors.
Count Six: Mr. North alleges that Assistant Health Services Administrator (“AHSA”)
Rupska and Warden Lockett violated his constitutional rights because he was placed in a medical
cell that was extremely cold for seven months.
Count Seven: Mr. North alleges that from August 20, 2011, to February 28, 2012, his
Constitutional rights were violated by Lt. Puthoff, Lt. Brace, and Warden Lockett because he was
not allowed out of his cell for recreation.
As discussed in the Entry of April 11, 2017, the attorneys recruited by this Court to
represent Mr. North are known to be experienced and competent. They reviewed the evidence
provided to them from their client and through discovery. They researched the relevant law and
expended a total of 190 hours investigating the merits of Mr. North’s claims. They explained their
assessment of the case to Mr. North in writing and by telephone. Mr. North, however, decided that
he wanted his counsel to withdraw and to proceed pro se. This decision was made willingly and
voluntarily after consultation with counsel and based on Mr. North’s personal knowledge
regarding the logistical and health issues he faces. Dkt. 157.
Once Mr. North was again proceeding pro se, the defendants’ motion for summary
judgment was reinstated on April 18, 2017, and Mr. North was given more than 60 days to file his
response in opposition to that motion. Dkt. 158. The alternative partial motion to dismiss was not
reinstated because it had already been ruled on. On June 26, 2017, Mr. North filed his Response
to the Motion for Summary Judgment. Dkt. 163. Mr. North’s response addressed all Counts,
including Counts One, Three, Four and Five which were previously been dismissed as time barred.
The Defendants replied on July 7, 2017. Dkt. 164.
Out of an abundance of caution this Court now vacates the dismissal of Counts One, Three,
Four and Five pursuant to Rule 12(b)(6). 1 All Counts shall now be considered when ruling on the
defendant’s pending motion for summary judgment. This is appropriate because all Counts were
originally at issue in the pending motion for summary judgment and all Counts were addressed in
the plaintiff’s response brief.
II. STANDARD OF REVIEW
A motion for summary judgment asks that the Court find that a trial based on the
uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would
conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary
judgment, the non-moving party must set forth specific, admissible evidence showing that there is
a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The key inquiry, is
whether admissible evidence exists to support a plaintiff’s claims, not the weight or credibility of
that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep’t
of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). When evaluating this inquiry, the Court must
give the non-moving party the benefit of all reasonable inferences from the evidence submitted
and resolve “any doubt as to the existence of a genuine issue for trial ... against the moving party.”
Celotex, 477 U.S. at 330.
It is noted that Mr. North had not yet been represented by counsel when the motion to dismiss
was granted on September 21, 2016.
Whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). Failure to properly support a fact in
opposition to a movant’s factual assertion can result in the movant’s fact being considered
undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e). The Seventh
Circuit has explained:
Once a party files a motion for summary judgment showing within its four corners
entitlement to prevail, judgment must be entered “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden at trial.”
Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989) (quoting Celotex, 477 U.S. at 322).
III. ENFORCEMENT OF LOCAL RULE 56-1
The Seventh Circuit has “repeatedly held that the district court is within its discretion to
strictly enforce compliance with its local rules regarding summary-judgment motions.” Patterson
v. Indiana Newspapers, Inc., 589 F.3d 357, 360 (7th Cir. 2009); see also Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008). That is the case here. The Southern District of Indiana’s
Local Rule 56-1 shall be enforced. See also McNeil v. United States, 508 U.S. 106, 113 (1993).
In making this ruling the Court notes that it could have taken a more flexible approach and
ignored the deficiencies discussed below in Mr. North’s filings. See Gray v. Hardy, 826 F.3d 1000,
1004-05 (7th Cir. 2016) (holding that district courts are not required to hold pro se litigants to the
potential consequences of their failure to comply with the Local Rules and can instead take “a
more flexible approach,” including by ignoring the deficiencies in their filings and considering the
evidence they submit). Such flexibility is particularly warranted when a pro se litigant is
proceeding without the benefit of counsel and where such flexibility allows the case to be
considered on the merits. See Robinson v. Sweeny, 794 F.3d 782, 784 (7th Cir. 2015) (“[i]f the
courts intend not to excuse procedural mistakes by pro se litigants, the spirit of legal justice would
seem to require that someone inform those litigants of the rudiments of federal procedure . . . .”).
In this case, however, counsel was recruited to represent Mr. North so that he could file a
response in opposition to the motion for summary judgment that complies with this Court’s Local
Rules (and, as always, Rule 11 of the Federal Rules of Civil Procedure). Counsel spent
considerable time and effort in that representation, but Mr. North declined that assistance.
“Someone who spurns counsel cannot insist that his adversary and the judicial system provide
equivalent advice and protection.” Denlinger v. Brennan, 87 F.3d 214, 217 (7th Cir. 1996). In
addition, Mr. North was provided with notice regarding his right to respond and of Rule 56 of the
Federal Rules of Civil Procedure and Local Rule 56-1 on two separate occasions. Dkts. 110 and
Accordingly, Mr. North’s motion for extension of time, dkt. 166, and motion to file a
second reply, dkt. 167, are denied. The Court will not consider Mr. North’s papers submitted after
the defendants’ reply was filed. There are two reasons for this ruling. First, Mr. North was
previously instructed that additional extensions of time would not be permitted because this case
has been pending since December 2013, and Mr. North was previously permitted seven months to
file a response to this same motion for summary judgment. See dkts. 118, 158 and 162. Second,
Local Rule 56-1 provides for the filing of a brief in support of a motion for summary judgment, an
answering brief, and a reply brief. A party opposing a summary judgment motion may file a
surreply brief only if the movant cites new evidence in the reply or objects to the admissibility of
the evidence cited in the response. S.D. Ind. Local Rule 56-1(d). The surreply must be filed within
7 days after the movant serves the reply and must be limited to the new evidence and objections.
Mr. North’s proposed “Second Reply” is in essence a surreply, which does not meet any
of the requirements of the Local Rule. In their reply brief, the defendants did not introduce any
new evidence, nor did they object to the admissibility of the evidence designated by Mr. North
(because he designated none). Under these circumstances, Local Rule 56-1 shall be strictly
enforced. 2 Perron on behalf of Jackson v. J.P. Morgan Chase Bank, N.A., 845 F.3d 852, 856 (7th
Cir. 2017) (the judge has broad discretion to enforce the local rules).
In addition, Mr. North has opposed the motion for summary judgment, but his response is
inadequate to create a genuine issue of material fact. Local Rule 56-1(b) requires a brief in
opposition to a motion for summary judgment to include a section labeled “Statement of Material
Facts in Dispute” which responds to the movant’s asserted material facts by identifying the
potentially determinative facts and factual disputes which the nonmoving party contends
demonstrate that there is a dispute of fact precluding summary judgment. These facts must be
There is one exception to this ruling to strictly construe the Local Rules, which is made in favor
of Mr. North. Specifically, Local Rule 7-1(e) states that response briefs may not exceed 35 pages.
Mr. North’s response brief is 50 pages. This oversized brief shall be permitted in this instance
because the response brief is handwritten and double spaced and allowing consideration of the
entire brief in this instance is not a burden to the court or the defendants (who did not object on
supported by appropriate citations to admissible evidence. See L.R. 56-1(e); Edward E. Gillen Co.
v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993). Mr. North did not provide a “Statement of
Material Facts in Dispute” nor did he provide citations to factual assertions in his brief.
Mr. North’s failure to properly oppose the motion for summary judgment with a statement
of material facts in dispute supported by admissible evidence has a particular consequence, which
is that he has admitted the truth of the defendant’s statement of material facts for purposes of the
Court acting on the motion for summary judgment. See Johnson v. Gudmundsson, 35 F.3d 1104,
1108 (7th Cir. 1994). This does not alter the standard for assessing a Rule 56 motion, but does
“reduc[e] the pool” from which the facts and inferences relative to such a motion may be drawn.
Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997); see also Smith v. Lamz, 321 F.3d 680, 683 (7th
Cir. 2003) (“Smith’s summary-judgment materials were woefully deficient in either responding
adequately to the defendants’ statement or in setting forth additional facts with appropriate
citations to the record. As such, … the district court did not abuse its discretion in deeming
admitted and only considering the defendants’ statement of material facts.”).
IV. UNDISPUTED FACTS
Applying the standards set forth above, the undisputed material facts are as follows:
A. Statute of Limitations
North filed his complaint on December 12, 2013. He signed his complaint on November
Count One of North’s Amended Complaint sets out a claim regarding his first nasogastric
tube feeding at FCC Terre Haute. That feeding occurred on August 10, 2011.
Count Three of North’s Amended Complaint addresses matters occurring at the latest in
Count Four of North’s Amended Complaint addresses matters allegedly commencing in
August, 2011, and continuing for three weeks.
Count Five addresses matters that allegedly occurred during that same time frame as Count
B. Involuntary Feeding Procedures
The decision to involuntarily feed Mr. North was a medical decision based upon a clinical
diagnosis of impending malnutrition. The involuntary feedings occurred to prevent organ damage
and save Mr. North’s life due to his refusal to voluntarily consume either food or the nutritional
supplement, which he was always offered. Based upon the medical records, Mr. North was
involuntarily fed 348 times. Despite the involuntary feedings, Mr. North lost approximately 29
pounds during his hunger strike activity at USP-Terre Haute.
Each day before any involuntary feeding, Mr. North was offered food, and every day, he
refused. Mr. North was medically assessed before and after each feeding procedure; he was
constantly monitored via lab work and physical examinations. Mr. North was routinely advised of
the potential consequences relative to his hunger strike activity. Specifically, Mr. North was
advised prior to each feeding that some associated complications of tube feeding included
aspiration of liquid contents, pneumonia, vomiting, sore throat, nasal bleeding, esophageal tear,
and nasal damage. Each time he refused nutritional supplements, so the feeding procedure was
The process used to initiate a nasogastric feeding was that staff members would insert an
appropriately lubricated nasogastric tube through Mr. North’s nose and its position was verified
by medical staff members. The nutritional supplement and water were then administered through
the tube, in amounts predetermined by a medical doctor, and the tube was removed, all by trained
medical staff. Following the administration of the liquids, Mr. North was to remain in an upright
position for 90 minutes to minimize the potential for aspiration and other adverse health effects.
After the 90 minute observation period, Mr. North was escorted back to his housing quarters, and
all restraints were removed.
Dr. Douglas K. Rex, an outside doctor board certified in Internal Medicine and
Gastroenterology, testified that the medical care providers’ actions were appropriate and within
the standard of care. Dr. Rex based his opinion on Mr. North’s medical record and review of a
sample of videos that were taken of the nasogastric tube feedings. Dkt. 108-11 at 5.
C. Restriction on Recreation
During the time Mr. North was being involuntarily feed, it was medically appropriate and
within the standard of care for Mr. North’s access to recreational activities to be suspended, in an
effort to prevent Mr. North from increasing his physical activity. This is because physical activity
would potentially negate or defeat the feeding effort to maintain an appropriate nutritional intake
and would place Mr. North at risk of injury due to the effects of possible dehydration. Based upon
the medical judgment of Bureau of Prison (“BOP”) staff physicians, there were adverse health
risks associated with Mr. North’s hunger strike activity making it inappropriate for him to have
recreation other than walking or stretching within his cell.
It was Lt. Brace’s understanding that due to Mr. North’s limited food and water intake,
strenuous recreation was not advised. Lt. Brace deferred to the medical judgment of those qualified
to make such decisions. Lt. Brace did not decide when or where Mr. North or any other inmate
The decision that Mr. North was not to have recreation was a clinical decision, made by
Mr. North’s medical providers. Lt. Puthoff was not one of Mr. North’s medical providers. Lt.
Puthoff was advised by medical staff that any vigorous exercise would have increased Mr. North’s
risk for injury due to dehydration, exhaustion, or fatigue. Further, Lt. Puthoff was advised that
vigorous exercise would have increased Mr. North’s need for hydration, and daily caloric intake,
and would therefore have lessened any benefit achieved as a result of his involuntary feedings. Lt.
Puthoff had no decision making authority or input with respect to Mr. North’s recreation activity.
Warden Lockett relied upon, and deferred to, the medical judgment of staff physicians. He
was informed of the health risks associated with Mr. North’s hunger strike activity and that the
staff physicians deemed him inappropriate for recreation other than walking or stretching within
his cell. Specifically, according to Mr. North’s medical records, and in speaking with the staff
physicians at the time of the hunger strike, Warden Lockett was advised that any vigorous exercise
would have increased Mr. North’s risk for injury due to dehydration, exhaustion, or fatigue.
Further, Warden Lockett was advised that vigorous exercise would have increased Mr. North’s
need for hydration, and daily caloric intake, and would therefore have lessened any benefit
achieved as a result of his involuntary feedings. Warden Lockett deferred to the medical judgment
summarized above with respect to Mr. North’s recreation activity.
On October 30, 2011, Mr. North characterized himself as feeling the healthiest that he had
been in many years.
D. Mr. North’s Cell Conditions
AHSA Rupska was not responsible for the conditions in Mr. North’s cell. AHSA Rupska
was not responsible for, and was not in control of clinical decisions such as Mr. North’s living
conditions while he was on a hunger strike. Mr. North’s housing was a clinical decision, and in
accordance with BOP’s hunger strike protocol so that his food intake, if any, could be monitored
and documented, and further, so that Mr. North could be in a close proximity to Health Services
staff members to ensure his safety due to the extreme health risks associated with his hunger strike
activity. Specifically, AHSA Rupska was not responsible for determining the specific cell or
location Mr. North would be housed in, nor was he responsible for, or in control of, the temperature
of the room the Mr. North was housed in.
The medical isolation rooms at USP-Terre Haute are the same temperature as the entirety
of the medical department, which includes staff offices and exam rooms. There is no thermostat
or temperature control device within the medical department. The temperature of USP-Terre
Haute, including the medical isolation room in the Health Services Department is controlled and
monitored by the Facilities Department in the Central Utility Plant (“CUP”) which is outside the
physical confines of the USP-Terre Haute facility.
Neither Warden Lockett nor AHSA Rupska was directly responsible for the temperature or
air circulation in the isolation cell. Further, the air circulation in the medical isolation room is part
of a negative pressure system which is likewise monitored by the Facilities Department, and is
serviced by an outside contractor on an annual basis to ensure it is functioning properly.
The defendants’ claim that they are entitled to summary judgment and the plaintiff has
opposed this motion. With the procedural background, law and undisputed facts set forth above in
mind, this Entry now turns to the merits of the parties’ arguments. These arguments are broken
into two sections. First, whether the defendants are entitled to summary judgment on the basis that
Counts One, Three, Four, and Five are barred by the applicable statute of limitations. Next, whether
the defendants are entitled to summary judgment on Counts Two, Six and Seven because the
plaintiff has failed to present evidence that his Eighth Amendment rights were violated as alleged
in these Counts.
A. Statute of Limitations
Mr. North has sued the defendants under the Bivens doctrine, which allows suits against
federal employees for violations of constitutional rights. Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The statute of limitations in a Bivens claim
is the same as that for a claim brought pursuant to 42 U.S.C. § 1983. See Lewellen v. Morely, 875
F.2d 118, 119 (7th Cir. 1989); Bieneman v. City of Chicago, 864 F.2d 463, 469 (7th Cir. 1988). In
these cases, “federal courts apply the statute of limitations governing personal injury actions in the
state where the injury took place.” Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013). “In
Indiana, such claims must be brought within two years.” Id. (citing Ind. Code § 34-11-2-4). In
addition, Indiana’s tolling rules apply and “Indiana law treats disability as a reason for tolling the
statute of limitations.” Richards v. Mitcheff, 549 F. App’x 572 (7th Cir. 2014) (“federal law under
42 U.S.C. § 1988 absorbs both the period of limitations from state law and the corresponding
Federal law, however, determines when that statute begins to run. Bivens and § 1983
claims “accrue when the plaintiff knows or should know that his or her constitutional rights have
been violated.” Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006). The Court conducts a two-part
inquiry to determine when this standard is met: “First, a court must identify the injury. Next, it
must determine the date on which the plaintiff could have sued for that injury.” Id.
There is no dispute that the matters complained of in Mr. North’s Counts One, Three, Four,
and Five accrued at the latest in September of 2011. Mr. North filed his complaint (at the earliest)
on November, 28, 2013, when he signed it and it could have been placed in the USP-Terre Haute’s
mail. 3 Thus, Counts One, Three, Four, and Five were filed more than 2-years after the claims raised
Because the defendants have established that Counts One, Three, Four, and Five were
commenced beyond the two-year statutory period, the burden is now on Mr. North to establish an
issue of fact material to a theory that avoids the defense. Boggs v. Tri–State Radiology, Inc., 730
N.E.2d 692, 695 (Ind. 2000). “This is appropriate because the facts establishing incapacity or the
reasonableness of the plaintiff's diligence in filing his or her claim are uniquely within the
Pursuant to the “prison mailbox rule,” a pro se prisoner's complaint is deemed filed when it is
handed over to prison staff for mailing, not on the date it is received by the clerk of the court. See
Houston v. Lack, 487 U.S. 266, 275-76 (1988); Ingram v. Jones, 507 F.3d 640, 643-45 (7th Cir.
2007); Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008).
plaintiff’s knowledge.” Id.
In response, Mr. North argues his claims are not untimely because the statute of limitations
should be tolled under Indiana law. Dkt. 163 at 4. In support of his claim that the statute of
limitations should be tolled Mr. North references the Indiana Constitution, Article I, Section 12.
This provision states:
Section 12. All courts shall be open; and every person, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law. Justice
shall be administered freely, and without purchase; completely, and without denial;
speedily, and without delay.
Ind. Cost. Art. 1 § 12 (amended Nov. 6, 1984).
In Herron v. Anigbo, the Indiana Supreme Court noted (in the context of a medical
malpractice case) “that under Article I, Section 12’s guarantee of a remedy by due course of law,
unusual circumstances of the plaintiff may prevent access to the courts and suspend the period in
which reasonable diligence is required.” 897 N.E. 2d 444, 451 (Ind. 2008). Specifically, “the
statute [of limitations] would be unconstitutional as applied to the plaintiff if he ‘was mentally and
physically incapacitated’ so that he could not give the notice as required by the statute.” Herron,
897 N.E. 2d at 451 (quoting City of Fort Wayne v. Cameron, 370 N.E.2d 338, 341 (1977)). In the
absence of any statutory provision for tolling the statute of limitations, the Indiana constitutional
right to remedy by due course of law entitles a plaintiff who is “mentally and physically
incapacitated so that he could not give” the required notice to “a reasonable time after his disability
[is] removed within which to file . . . .” Polick v. Indiana Dept. of Highways, 668 N.E.2d 682, 684
(Ind. 1996) (quoting Cameron, 370 N.E.2d at 341). In other words, “if a victim of a tort is disabled
during part of the period of limitations, but becomes well enough to file suit before that time
expires, then the victim must file suit before the normal expiration date ‘if possible in the exercise
of due diligence.’” Richards, 549 F. App’x 572 (7th Cir. 2014) (quoting Herron, 897 N.E.2d at
Mr. North argues that during his seven month hunger strike he was held in a single cell
medical isolation unit and that “prison staff incapacitated him in several ways.” Dkt. 163 at p. 6.
As discussed in Part III of this Entry, Mr. North has not properly submitted any evidence in support
of this claim. But even if Mr. North’s declaration dated June 20, 2017, were considered, it is
insufficient to create a material fact in dispute. Dkt. 165. Instead of showing that Mr. North was
incapacitated, the declaration would show that despite a variety of hardships and barriers Mr. North
was able to submit grievances/administrative remedy requests during the relevant seven month
time period. This evidence directly contradicts Mr. North’s suggestion that he was incapacitated
such that the statute of limitations should have been tolled due to his incapacity.
In addition, the alleged incapacity was a result of Mr. North’s placement in isolation for a
seven month period from July 2011 through February 2012. Mr. North does not provide any basis
to conclude that he acted with reasonable diligence after February 2012 (when he was released
from medical isolation) and August 10, 2013, when the statute of limitations period ran on Count
One. 4 Mr. North had even more time, through as late as September 30, 2013, in which to file a
Count One is based on Mr. North’s first nasogastric tube feeing at USP-Terre Haute on August
lawsuit regarding Counts Three, Four and Five. 5 Polick v. Indiana Dept. of Highways, 668 N.E.2d
682, 684 (Ind. 1996) (plaintiff is entitled to a reasonable time after his disability is removed within
which to file).
Under these circumstances, no reasonable trier of fact could conclude that Mr. North did
not have sufficient time or opportunity to file his Complaint. In addition, “Indiana does not
recognize incarceration as a legal disability precluding plaintiffs’ ability to bring suit. Diaz v.
Carpenter, 650 N.E.2d 688, 691–92 (Ind. Ct. App. 1995); Alexander v. City of South Bend, 256
F.Supp.2d 865, 874 (N.D. Ind. 2003).” Richards v. Mitchell, 2013 WL 3225835 at *3 (S.D. Ind.
June 25, 2013).
Mr. North has not shown that the two-year statute of limitations as applied to him violates
Article I, Section 12 of the Indiana Constitution. He was not denied a meaningful opportunity to
pursue his constitutional claims. Accordingly, summary judgment is granted in favor of the
defendants on Counts One, Three, Four and Five because these claims are barred by the statute of
limitations. Under these circumstances the merits of Mr. North’s underlying claims against the
individual defendants shall not be assessed further.
B. Eighth Amendment Claims
The remaining claims for relief in this action are based on the protections afforded by the
Eighth Amendment. Specifically, prison officials have a duty under the Eighth Amendment to
Count Three of North’s Amended Complaint addresses matters occurring “[F]rom approximately
August 10, 2011, to a point in September 2011. . .” Dkt. 12 at 4. Count Four of North’s Amended
Complaint addresses matters allegedly commencing in August, 20, 2011, and continuing for three
weeks. Count Five address matters that occurred during the same time frame as Count Four.
provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). A
prison official may be held liable under the Eighth Amendment for acting with deliberate
indifference to inmate health or safety only if the prison official knows that an inmate faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable measures to
avoid it. Id. at 847. To show deliberate indifference, plaintiff must show the defendants actually
knew of a substantial risk of harm to the inmate and acted or failed to act with disregard for that
risk. Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002).
The defendants argue that they are entitled to summary judgment because Mr. North has
failed to present admissible evidence with regard to essential elements to which Mr. North has the
burden. The Supreme Court has noted:
In our view the plain language of rule 56(b) mandates the entry of summary
judgment . . . against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case and on which that party
will bear the burden of proof at trial. In such a situation, there can be ‘no genuine
issue as to any material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts
Celotex, 477 U.S. at 322-23. For the reasons explained below, this position is persuasive and the
defendants are entitled to summary judgment on Counts Two, Six and Seven.
1. Count Two
In Count Two, Mr. North alleged that Nurses Bixler, Norris, Scharff, McDaniel, and Heiser
inflicted unnecessary pain and damage to his nasal passage in connection with the insertion of
nasogastric tubes at unspecified times, and that Dr. Wilson and Warden Lockett were responsible
The defendants argue that they are entitled to summary judgment because Mr. North cannot
establish that these individual defendants acted with deliberate indifference. Specifically, Mr.
North has produced no testimony that any involuntary feeding has ever taken place without
medical approval. Mr. North cannot remember which of the nurses named in Count Two allegedly
inflicted pain upon him. North Dep. page 40, lines 20-24; dkt. 108-12 at 9. Nor is there any
evidence that any of the nurses named in Count Two did anything specific related to his care. North
Dep. page 40, line 20 – page 41, line 13; dkt. 108-12 at 9.
Relatedly, there is no evidence in this case that the defendants’ actions were “so far afield
of accepted professional standards as to raise the inference that it was not actually based on a
medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); see also Estelle v.
Gamble, 429 U.S. 97, 104–106 (1976) (holding that in assessing whether the government has met
its obligation to provide medical care for those whom it incarcerates, “a prisoner must allege acts
or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”).
Instead, the record reflects that the medical care professionals involved in the insertion of a
nasogastric tube did so to promote Mr. North’s health and Dr. Douglas K. Rex, an outside doctor
board certified in Internal Medicine and Gastroenterology, provided his testimony in support of
the assertion that the medical care providers’ actions were appropriate and within the standard of
care. Dr. Rex based his opinion on Mr. North’s medical record and review of a sample of videos
that were taken of the nasogastric tube feedings. Dkt. 108-11 at 5. It is not inconsistent to presume
that Mr. North experienced the pain from the insertion of the nasogastric tube as he alleges and
that the medical staff was not indifferent that pain (known associated complications of tube feeding
include aspiration of liquid contents, pneumonia, vomiting, sore throat, nasal bleeding, esophageal
tear, and nasal damage). A prison official “who actually [knows] of a substantial risk to inmate
health or safety may be found free from liability if [he] responded reasonably to the risk, even if
the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
Accordingly, Defendants Nurses Bixler, Norris, Scharff, McDaniel, and Heiser are entitled
to judgment in their favor as to Count Two.
2. Count Six
In his response brief, Mr. North makes no argument and presents no evidence regarding
Count Six, in which he alleged that defendants AHSA Rupska and Warden Lockett placed him in
an “extremely cold” medical cell. Conversely, these defendants presented evidence that they were
not involved in decisions about Mr. North’s cell placement during the involuntary feedings, which
were clinical decisions made by medical staff pursuant to the hunger strike protocol. In addition,
there is no dispute that Mr. North’s cell was the same temperature as the other rooms in the medical
department, including staff offices and exam rooms.
Based on the foregoing, Mr. North cannot establish that either defendant was aware of any
“substantial risk” of “serious harm” caused by Mr. North’s placement in the medical isolation cell,
nor that he was actually in any risk of harm based on his cell temperature. As a result, defendants
AHSA Rupska and former Warden Lockett are entitled to summary judgment as to Count Six. See
Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999) (holding that summary
judgment is the “moment in a lawsuit, when a party must show what evidence it has that would
convince a trier of fact to accept its version of events”).
3. Count Seven
In Count Seven, Mr. North alleges that from August 20, 2011, to February 28, 2012, his
constitutional rights were violated by Lt. Puthoff, Lt. Brace, and Warden Lockett because he was
not allowed out of his cell for recreation.
The undisputed record reflects that the decision to suspend Mr. North’s recreation activities
for a period of time was reasonable and based on medical advice and direction from BOP
physicians. Specifically, the BOP medical staff determined that exercise beyond walking or
stretching in his cell would potentially defeat or negate the health benefits of the involuntary
feedings and place Mr. North at risk of reduced caloric intake or dehydrations. Lt. Brace, Lt.
Puthoff and Warden Lockett relied upon this advice and deferred to the judgment of medical
professionals in deciding whether Mr. North should have recreation time.
In addition, Mr. North does not allege or establish that the deprivation of recreation yard
privileges caused him to suffer unusual health consequences or an “impending harm easily
preventable.” Rasho v. Walker, 393 Fed. Appx. 401, 403 (7th Cir. 2010) (quoting Jackson v.
Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)). On the contrary, Mr. North testified that on October
30, 2011, he was feeling the healthiest that he had been in many years. Dkt. 108-12 at 12; North
Dep. at page 58, line 5 – page 59, line 19 (claiming that he was healthier than he had been before
his hunger strike, even in the absence of recreation).
Based on the foregoing, the Defendants Lt. Brace, Lt. Puthoff, and former Warden Lockett
are entitled to summary judgment as to Count Seven.
4. Qualified Immunity
The defendants argue that even if they are found to have violated Mr. North’s Eighth
Amendment rights, they are entitled to qualified immunity. “Qualified immunity protects officers
performing discretionary functions from civil liability so long as their conduct does not violate
clearly established statutory or constitutional rights that a reasonable person would know about.”
Mustafa v. City of Chicago, 442 F.3d 544, 548 (7th Cir. 2006) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). Analysis of the qualified immunity defense requires a consideration of: (1)
whether the plaintiff’s constitutional rights were violated and (2) whether the right clearly
established at the time. Id.
The defendants argue it would not have been clear to the defendants that it was “unlawful”
for Mr. North to be provided nutrition by a nasogastric tube when he chose to go on a hunger
strike, that he should not have been placed in the isolation cell to allow his health and caloric intake
to be better monitored during the hunger strike, or for him to not to be allowed the opportunity for
vigorous exercise, which would potentially harm his heath. Mr. North does not respond to this
For the reasons explained above, however, there was no constitutional violation, see
Jackson v. Parker, 627 F.3d 634, 635 (7th Cir. 2010); Suarez v. Town of Ogden Dunes, 581 F.3d
591, 595 (7th Cir. 2009), and a qualified immunity defense is irrelevant. Mucha v. Vill. of Oak
Brook, 650 F.3d 1053, 1057–58 (7th Cir. 2011).
It has been explained that “summary judgment serves as the ultimate screen to weed out
truly insubstantial lawsuits prior to trial.” Crawford-El v. Britton, 118 S. Ct. 1584, 1598 (1998).
This is a vital role in the management of court dockets, in the delivery of justice to individual
litigants, and in meeting society’s expectations that a system of justice operate effectively. Indeed,
“it is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal
of a trial when the outcome is foreordained,” and in such cases, summary judgment is appropriate.
Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Mr. North has not identified a genuine issue of material fact as to his claims in this case
and the defendants are entitled to judgment as a matter of law. Therefore, the Defendants’ Motion
for Summary Judgment, dkt. , is GRANTED.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
COLEMAN - II USP
COLEMAN II U.S. PENITENTIARY
P.O. BOX 1034
COLEMAN, FL 33521
Jeffrey L. Hunter
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE
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